0001| SENATE BILL 369
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| DEDE FELDMAN
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO PUBLIC HEALTH; ENACTING THE TOBACCO PREVENTION AND
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0012| MINORS ACT; REPEALING THE TOBACCO PRODUCTS ACT; REPEALING AND
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0013| ENACTING SECTIONS OF THE NMSA 1978; PROVIDING PENALTIES; MAKING
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0014| AN APPROPRIATION.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. SHORT TITLE.--This act may be cited as the
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0018| "Tobacco Prevention and Minors Act".
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0019| Section 2. FINDINGS.--The legislature finds that:
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0020| A. approximately four hundred fifty thousand
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0021| Americans, including nearly two thousand two hundred New
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0022| Mexicans, die each year of diseases caused by cigarette
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0023| smoking, according to the American cancer society;
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0024| B. the United States surgeon general has determined
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0025| that smoking is the leading cause of preventable death in the
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0001| United States;
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0002| C. nicotine in tobacco was found in a 1988 report
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0003| of the United States surgeon general to be a powerfully
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0004| addictive drug. Forty percent of all teenagers who smoke daily
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0005| have made at least one serious but unsuccessful attempt to
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0006| quit, according to the United States surgeon general. It is
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0007| important, therefore, to prevent young people from using
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0008| nicotine until they are mature and capable of making an
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0009| informed and rational decision about its use and dangers;
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0010| D. every day more than three thousand minors begin
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0011| smoking; of those, approximately one thousand will eventually
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0012| die of tobacco-related illnesses, according to the United
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0013| States department of health and human services;
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0014| E. an estimated two hundred fifty-five million
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0015| packs of cigarettes are sold illegally to minors every year in
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0016| the United States, according to the American journal of public
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0017| health; and
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0018| F. fifty-eight percent of youths from the ages of
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0019| twelve to seventeen years buy their own cigarettes, according
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0020| to a 1992 report by the centers for disease control and
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0021| prevention.
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0022| Section 3. DEFINITIONS.--As used in the Tobacco
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0023| Prevention and Minors Act:
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0024| A. "minor" means an individual who is less than
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0025| eighteen years of age;
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0001| B. "person" means an individual or other legal
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0002| entity;
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0003| C. "place of business" means each location at which
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0004| tobacco products are sold, including vending machines;
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0005| D. "tobacco product" means any substance that
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0006| contains tobacco, including cigarettes, cigars, pipe tobacco,
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0007| snuff, smoking tobacco or smokeless tobacco; and
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0008| E. "unit" means the tobacco use prevention unit in
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0009| the department of health.
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0010| Section 4. TOBACCO USE PREVENTION UNIT--DUTIES.--
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0011| A. The "tobacco use prevention unit" is created in
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0012| the department of health. The unit shall be headed by a
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0013| director.
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0014| B. The unit shall:
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0015| (1) issue licenses for the sale of tobacco
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0016| products;
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0017| (2) provide to persons licensed to sell
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0018| tobacco products signs that meet the requirements specified in
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0019| Section 6 of the Tobacco Prevention and Minors Act;
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0020| (3) investigate, concurrently with local
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0021| officials, violations of the Tobacco Prevention and Minors Act;
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0022| (4) impose civil fines under the Tobacco
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0023| Prevention and Minors Act;
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0024| (5) bring license suspension, revocation and
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0025| nonrenewal actions under the Tobacco Prevention and Minors Act;
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0001| and
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0002| (6) take such other action as it deems
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0003| necessary or appropriate to administer and enforce the
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0004| provisions of the Tobacco Prevention and Minors Act.
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0005| Section 5. LICENSES.--
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0006| A. A license for the sale of tobacco products shall
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0007| be issued to a person for a specific place of business and
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0008| shall be valid for a period not to exceed six years. A license
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0009| is not assignable and is valid only for the person in whose
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0010| name it is issued and for the specific place of business or
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0011| vending machine designated on the license.
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0012| B. There is no fee for a license. It shall be
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0013| available upon request from the unit, provided that the unit
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0014| finds the requester has not previously violated provisions of
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0015| the Tobacco Prevention and Minors Act or any other relevant
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0016| law. A license holder may be made subject to reasonable terms
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0017| and conditions the unit may impose.
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0018| Section 6. SIGNS CONCERNING SALES TO MINORS AND FALSE
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0019| EVIDENCE OF AGE AND IDENTITY.--
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0020| A. The unit shall provide to each person licensed
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0021| to sell tobacco products the following two signs:
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0022| (1) one sign that contains in red lettering at
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0023| least one inch high on a white background a notice stating:
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0024| "IT IS A VIOLATION OF THE LAW FOR CIGARETTES OR OTHER TOBACCO
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0025| PRODUCTS TO BE SOLD OR DISTRIBUTED TO ANY PERSON UNDER THE AGE
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0001| OF 18." and that includes on the sign a depiction of a pack of
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0002| cigarettes and a can of smokeless tobacco at least two inches
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0003| high defaced by a red diagonal diameter line through a
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0004| surrounding red circle; and
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0005| (2) another sign that contains in red
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0006| lettering at least one inch high on a white background a notice
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0007| stating: "IT IS A VIOLATION OF THE LAW FOR A PERSON UNDER THE
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0008| AGE OF 18 TO PRESENT ANY FALSE EVIDENCE OF AGE OR IDENTITY FOR
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0009| THE PURPOSE OF OBTAINING TOBACCO PRODUCTS.".
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0010| B. There shall be no fee to obtain the signs
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0011| described in Subsection A of this section, and at least one
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0012| copy of each sign shall be provided by the unit to every person
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0013| that holds a license for the sale of tobacco products.
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0014| Section 7. DISPLAY OF LICENSE AND SIGNS.--A person that
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0015| holds a license for the sale of tobacco products shall at all
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0016| times publicly display in at least one conspicuous location at
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0017| the specific place of business designated on the license:
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0018| A. the license or a copy of the license that
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0019| authorizes the sale of tobacco products at the specific place
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0020| of business or on the vending machine for which the license is
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0021| issued; and
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0022| B. the signs that meet the requirements of Section
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0023| 6 of the Tobacco Prevention and Minors Act.
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0024| Section 8. PROHIBITIONS ON SALES APPLICABLE TO TOBACCO
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0025| LICENSE HOLDERS AND THEIR EMPLOYEES AND AGENTS--VENDING
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0001| MACHINES.--
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0002| A. A person that holds a license for the sale of
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0003| tobacco products, or an employee or agent of that person, may
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0004| not sell or distribute a tobacco product:
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0005| (1) to a minor;
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0006| (2) other than at the specific place of
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0007| business for which a license has been issued for the sale of
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0008| tobacco products; or
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0009| (3) in any form other than an original
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0010| factory-wrapped package of at least twenty cigarettes.
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0011| B. Tobacco products may be sold by vending machines
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0012| in the following locations only:
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0013| (1) in locations not open to the public,
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0014| including controlled areas within factories, businesses and
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0015| offices; or
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0016| (2) in age-controlled public locations where
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0017| minors are not permitted unless accompanied by a parent or
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0018| guardian, including locations where alcoholic beverages are
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0019| offered for sale for the purpose of consumption on the
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0020| premises.
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0021| Section 9. PROHIBITION ON UNLICENSED SALE OR DISTRIBUTION
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0022| OF TOBACCO PRODUCTS.--No person, other than a person who holds
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0023| a license for the sale of tobacco products, or an employee or
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0024| agent of that person, may sell, distribute or provide free
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0025| samples of a tobacco product; provided, however, that nothing
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0001| in this section applies to distribution by a person to family
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0002| members on private property that is not open to the public.
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0003| Section 10. DOCUMENTARY EVIDENCE OF AGE AND IDENTITY.--
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0004| Evidence of the age and identity of the person seeking to
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0005| purchase a tobacco product may be shown by any document that
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0006| contains a photograph of the person issued by a federal, state,
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0007| county or municipal government, including a motor vehicle
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0008| driver's license or an identification card issued to a member
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0009| of the armed forces.
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0010| Section 11. REFUSAL TO SELL TOBACCO PRODUCTS TO A PERSON
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0011| UNABLE TO PRODUCE AN IDENTITY CARD.--Any person authorized to
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0012| sell tobacco products at retail or wholesale shall refuse to
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0013| sell tobacco products to any person who reasonably appears to
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0014| be less than twenty-seven years of age and who is unable to
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0015| produce an identity card with proper documentary evidence
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0016| establishing that he is eighteen years of age or over.
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0017| Section 12. PRESENTING FALSE EVIDENCE OF AGE OR IDENTITY-
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0018| - PENALTIES FOR MINORS.--
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0019| A. No minor shall present any false written,
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0020| printed or photostatic evidence of age or identity for the
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0021| purpose of procuring or attempting to procure any tobacco
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0022| products.
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0023| B. Any minor who violates the provisions of this
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0024| section shall be punished by:
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0025| (1) a civil fine not to exceed one hundred
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0001| dollars ($100);
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0002| (2) having to perform twenty-four hours of
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0003| community service; or
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0004| (3) being required to complete a smoking
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0005| cessation class.
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0006| C. Any minor who violates the provisions of this
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0007| section for a second or subsequent time shall be punished by a
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0008| combination of at least two of the three penalty options
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0009| provided in Subsection B of this section.
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0010| Section 13. CIVIL FINES ON LICENSEES--GROUNDS FOR
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0011| SUSPENSION, REVOCATION AND NONRENEWAL OF LICENSES.--
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0012| A. Any license holder for a specific place of
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0013| business that violates a requirement of Section 7 of the
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0014| Tobacco Prevention and Minors Act shall be subject to a civil
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0015| fine of not more than one hundred dollars ($100). Any license
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0016| holder that violates that section for a second or subsequent
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0017| time shall be subject to a civil fine of not more than five
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0018| hundred dollars ($500).
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0019| B. Any license holder for a specific place of
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0020| business, or any of its employees or agents that violates a
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0021| provision in Section 8 of the Tobacco Prevention and Minors Act
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0022| shall each be subject to a civil fine of:
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0023| (1) one hundred dollars ($100) for the first
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0024| violation;
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0025| (2) two hundred fifty dollars ($250) for the
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0001| second violation within any two-year period;
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0002| (3) five hundred dollars ($500) for the third
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0003| violation within any two-year period;
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0004| (4) one thousand dollars ($1,000) for the
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0005| fourth violation within any two-year period; and
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0006| (5) five thousand dollars ($5,000) for any
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0007| additional violation within any two-year period.
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0008| C. In addition to the civil fines provided in
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0009| Subsection B of this section, if a person that holds a license
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0010| for the sale of tobacco products for a specific place of
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0011| business violates a provision of Section 8 of the Tobacco
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0012| Prevention and Minors Act, the license:
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0013| (1) may be suspended for a period not to
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0014| exceed twenty-four hours upon a first violation of that
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0015| section;
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0016| (2) may be suspended for a period not to
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0017| exceed two consecutive days upon a second violation of that
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0018| section within any two-year period;
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0019| (3) may be suspended for a period not to
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0020| exceed one week upon a third violation of that section within
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0021| any
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0022| two-year period;
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0023| (4) shall be suspended for a period not to
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0024| exceed one month upon a fourth violation of that section within
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0025| any two-year period; and
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0001| (5) shall be revoked by the director of the
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0002| unit and not renewed by the director upon a fifth conviction of
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0003| that section within any two-year period.
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0004| D. With regard to the sanctions in Subsection C of
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0005| this section, the hearing officer may consider the following as
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0006| mitigating factors prior to imposing a license suspension or
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0007| revocation:
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0008| (1) the license holder informed each of its
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0009| employees and agents in writing of the applicable laws
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0010| regarding sales of tobacco products to any person under the age
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0011| of eighteen;
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0012| (2) the license holder engaged in a consistent
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0013| practice of requiring employees and agents to refuse to sell
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0014| tobacco products to any person who appears to be less than
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0015| twenty-seven years of age and who is unable to produce an
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0016| identity card as evidence that he is eighteen years of age or
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0017| over; and
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0018| (3) the license holder has established and
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0019| imposed sanctions against employees and agents for
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0020| noncompliance with the license holder's written policies and
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0021| actual practices regarding the sale of tobacco products.
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0022| E. Any person that violates a provision of Section
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0023| 9 of the Tobacco Prevention and Minors Act shall be subject to
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0024| a civil fine of one thousand dollars ($1,000). Any person that
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0025| violates that section for a second or subsequent time shall be
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0001| subject to a civil fine of five thousand dollars ($5,000).
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0002| F. A violation committed by an employee or agent,
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0003| and attributed to a license holder, shall be counted only once
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0004| for purposes of the preceding subsections.
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0005| Section 14. ENFORCEMENT--HEARING OFFICER--LIMITATIONS--
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0006| WAIVER--COSTS--PUBLIC HEARING--RECORD--RIGHT TO APPEAL.--
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0007| A. The unit shall, after written notice by
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0008| certified mail and hearing, impose the sanctions set forth in
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0009| Section 13 of the Tobacco Prevention and Minors Act.
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0010| B. If the license holder, employee or agent does
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0011| not mail a request for a hearing within thirty days, the
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0012| hearing officer shall take the action contemplated in the
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0013| notice, and the action shall be final and not subject to
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0014| judicial review.
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0015| C. All hearings that include telephonic hearings,
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0016| held pursuant to the Tobacco Prevention and Minors Act, shall
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0017| be conducted by a hearing officer designated by the secretary
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0018| of health.
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0019| D. No action shall be initiated by the unit later
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0020| than one year after the discovery of the conduct that is the
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0021| basis for the action.
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0022| E. The charged license holder, employee or agent
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0023| shall bear all costs of the hearing unless excused by the
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0024| hearing officer from paying all or part of the costs, or unless
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0025| the charged license holder, employee or agent prevails at the
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0001| hearing.
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0002| F. All hearings under the Tobacco Prevention and
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0003| Minors Act shall be open to the public.
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0004| G. In all hearings conducted under the Tobacco
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0005| Prevention and Minors Act, a complete record shall be made of
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0006| all evidence received during the course of the hearing. The
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0007| record shall be preserved by any stenographic method in use in
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0008| the district courts of New Mexico or, in the discretion of the
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0009| hearing officer, by tape recording.
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0010| H. Any person entitled to a hearing under the
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0011| Tobacco Prevention and Minors Act who is aggrieved by an
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0012| adverse decision issued after the hearing by the hearing
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0013| officer may obtain a review of the decision in the district
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0014| court of Santa Fe county. In order to obtain the review, the
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0015| aggrieved person shall, within twenty days after the date of
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0016| service of the decision, file with the court a notice of
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0017| appeal, a copy of which shall be served on the director of the
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0018| unit, stating all exceptions taken to the decision. The court
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0019| shall not consider any exceptions not stated in the petition.
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0020| I. Failure to file a notice of appeal in the manner
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0021| and within the time provided in Subsection H of this section
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0022| shall operate as a waiver of the right to judicial review and
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0023| shall result in the decision of the hearing officer becoming
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0024| final. However, for good cause shown within the time stated,
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0025| the judge of the district court may issue an order granting one
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0001| extension of time not to exceed sixty days.
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0002| J. Within thirty days after service of the copy of
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0003| the notice of appeal, the hearing officer shall prepare,
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0004| certify and file with the clerk of the district court of Santa
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0005| Fe county the record of the case. That shall include a copy of
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0006| the notice of hearing, a complete transcript or tape recording
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0007| of the testimony taken at the hearing, copies of all pertinent
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0008| documents and other written evidence introduced at the hearing,
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0009| a copy of the hearing officer's decision and a copy of the
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0010| notice of appeal. For good cause shown within the time stated,
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0011| the judge of the district court may issue an order granting one
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0012| extension of time not to exceed sixty days.
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0013| K. The court may affirm the decision, reverse the
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0014| decision or remand the case for further proceedings.
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0015| Section 15. PREEMPTION.--Nothing contained in the Tobacco
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0016| Prevention and Minors Act shall be construed to restrict the
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0017| power or authority of any county, city, town, village or other
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0018| legal political subdivision to adopt and enforce additional
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0019| local laws, ordinances or regulations that comply with at least
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0020| the minimum applicable standards set forth in the Tobacco
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0021| Prevention and Minors Act.
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0022| Section 16. APPROPRIATION.--Two hundred forty-five
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0023| thousand dollars ($245,000) is appropriated from the general
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0024| fund to the department of health for expenditure in fiscal year
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0025| 1998 to hire a director of the tobacco use prevention unit and
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0001| contract for or hire a hearing officer as needed and three
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0002| investigators, as well as to pay for other expenses of the
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0003| department for the purposes of carrying out the Tobacco
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0004| Prevention and Minors Act. Any unexpended or unencumbered
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0005| balance remaining at the end of fiscal year 1998 shall revert
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0006| to the general fund.
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0007| Section 17. REPEAL.--Sections 30-49-1 through 30-49-12
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0008| NMSA 1978 (being Laws 1993, Chapters 244, Sections 1 through
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0009| 12) are repealed.
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0010| Section 18. SEVERABILITY.--If any part or application of
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0011| the Tobacco Prevention and Minors Act is held invalid, the
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0012| remainder or its application to other situations or persons
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0013| shall not be affected.
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0014| Section 19. EFFECTIVE DATE.--The effective date of the
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0015| provisions of this act is July 1, 1997.
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0016| - 14 -
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0017|
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0018| FORTY-THIRD LEGISLATURE
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0019| FIRST SESSION, 1997
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0020|
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0021|
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0022| February 28, 1997
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0023|
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0024| Mr. President:
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0025|
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0001| Your PUBLIC AFFAIRS COMMITTEE, to whom has been referred
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0002|
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0003| SENATE BILL 369
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0004|
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0005| has had it under consideration and reports same WITHOUT
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0006| RECOMMENDATION, and thence referred to the JUDICIARY
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0007| COMMITTEE.
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0008|
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0009| Respectfully submitted,
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0010|
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0011|
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0012|
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0013| __________________________________
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0014| Shannon Robinson, Chairman
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0015|
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0016|
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0017| Adopted_______________________ Not Adopted_______________________
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0018| (Chief Clerk) (Chief Clerk)
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0019|
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0020|
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0021| Date ________________________
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0022|
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0023|
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0024| The roll call vote was 5 For 0 Against
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0025| Yes: 5
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0001| No: 0
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0002| Excused: Boitano, Garcia, Ingle, Vernon
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0003| Absent: None
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0004|
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0005|
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0006|
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0007| S0369PA1
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0008|
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0009|
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0010| FORTY-THIRD LEGISLATURE SB 369/a
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0011| FIRST SESSION, 1997
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0012|
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0013|
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0014| March 14, 1997
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0015|
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0016| Mr. President:
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0017|
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0018| Your FINANCE COMMITTEE, to whom has been referred
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0019|
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0020| SENATE BILL 369, as amended
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0021|
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0022| has had it under consideration and reports same with recommendation
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0023| that it DO PASS, amended as follows:
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0024|
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0025| 1. On page 1, lines 13 and 14, strike "; MAKING AN
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0001| APPROPRIATION".
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0002|
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0003| 2. On page 13, strike lines 16 through 25.
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0004|
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0005| 3. Renumber the succeeding sections accordingly.
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0006|
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0007| 4. On page 14, line 9, after the comma strike "1997" and
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0008| insert in lieu thereof "1998".
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0009|
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0010|
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0011| Respectfully submitted,
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0012|
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0013|
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0014|
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0015| __________________________________
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0016| Ben D. Altamirano, Chairman
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0017|
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0018|
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0019|
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0020| Adopted_______________________ Not Adopted_______________________
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0021| (Chief Clerk) (Chief Clerk)
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0022|
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0023|
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0024| Date ________________________
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0025|
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0001|
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0002| The roll call vote was 6 For 0 Against
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0003| Yes: 6
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0004| No: None
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0005| Excused: Aragon, Altamirano, Ingle, Lyons, Romero
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0006| Absent: None
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0007|
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0008| S0369FC1 .118007.1
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0009|
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0010|
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0011| FORTY-THIRD LEGISLATURE SB 369/a
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0012| FIRST SESSION, 1997
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0013|
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0014|
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0015| March 14, 1997
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0016|
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0017| Mr. President:
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0018|
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0019| Your FINANCE COMMITTEE, to whom has been referred
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0020|
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0021| SENATE BILL 369, as amended
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0022|
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0023| has had it under consideration and reports same with recommendation
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0024| that it DO PASS, amended as follows:
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0025|
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0001| 1. On page 1, lines 13 and 14, strike "; MAKING AN
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0002| APPROPRIATION".
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0003|
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0004| 2. On page 13, strike lines 16 through 25.
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0005|
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0006| 3. Renumber the succeeding sections accordingly.
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0007|
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0008| 4. On page 14, line 9, after the comma strike "1997" and
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0009| insert in lieu thereof "1998".
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0010|
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0011|
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0012| Respectfully submitted,
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0013|
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0014|
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0015|
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0016| __________________________________
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0017| Ben D. Altamirano, Chairman
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0018|
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0019|
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0020|
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0021| Adopted_______________________ Not Adopted_______________________
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0022| (Chief Clerk) (Chief Clerk)
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0023|
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0024|
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0025| Date ________________________
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0001|
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0002|
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0003| The roll call vote was 6 For 0 Against
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0004| Yes: 6
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0005| No: None
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0006| Excused: Aragon, Altamirano, Ingle, Lyons, Romero
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0007| Absent: None
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0008|
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0009| S0369FC1 .118007.1
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0010|
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0011|
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0012| FORTY-THIRD LEGISLATURE SB 369/a
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0013| FIRST SESSION, 1997
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0014|
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0015|
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0016| March 14, 1997
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0017|
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0018| Mr. President:
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0019|
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0020| Your FINANCE COMMITTEE, to whom has been referred
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0021|
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0022| SENATE BILL 369, as amended
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0023|
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0024| has had it under consideration and reports same with recommendation
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0025| that it DO PASS, amended as follows:
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0001|
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0002| 1. On page 1, lines 13 and 14, strike "; MAKING AN
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0003| APPROPRIATION".
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0004|
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0005| 2. On page 13, strike lines 16 through 25.
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0006|
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0007| 3. Renumber the succeeding sections accordingly.
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0008|
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0009| 4. On page 14, line 9, after the comma strike "1997" and
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0010| insert in lieu thereof "1998".
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0011|
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0012|
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0013| Respectfully submitted,
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0014|
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0015|
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0016|
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0017| __________________________________
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0018| Ben D. Altamirano, Chairman
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0019|
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0020|
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0021|
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0022| Adopted_______________________ Not Adopted_______________________
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0023| (Chief Clerk) (Chief Clerk)
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0024|
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0025|
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0001| Date ________________________
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0002|
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0003|
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0004| The roll call vote was 6 For 0 Against
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0005| Yes: 6
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0006| No: None
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0007| Excused: Aragon, Altamirano, Ingle, Lyons, Romero
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0008| Absent: None
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0009|
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0010| S0369FC1 .118007.1
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0011|
|
0012| FORTY-THIRD LEGISLATURE
|
0013| FIRST SESSION, 1997
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0014|
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0015|
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0016|
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0017| October 24, 1997
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0018|
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0019|
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0020| SENATE FLOOR AMENDMENT number to SENATE BILL 369, as amended
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0021|
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0022| AMENDMENT sponsored by SENATOR SMITH
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0023|
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0024| 1. On page 3, line 11, strike "department of health" and insert
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0025| in lieu thereof "attorney general's office".
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0004|
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0005|
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0006| Senator John Arthur Smith
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0009|
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0010| Adopted Not Adopted
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0011|
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0012| (Chief Clerk) (Chief Clerk)
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0013|
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0014|
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0015| Date
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0018|
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0019| S0369FS1 State of New Mexico
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0020| House of Representatives
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0021|
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0022| FORTY-THIRD LEGISLATURE
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0023| FIRST SESSION, 1997
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0024|
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0025|
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0001| March 21, 1997
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0002|
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0003|
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0004| Mr. Speaker:
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0005|
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0006| Your JUDICIARY COMMITTEE, to whom has been referred
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0008| SENATE BILL 369, as amended
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0009|
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0010| has had it under consideration and reports same with
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0011| recommendation that it DO PASS.
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0012|
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0013| Respectfully submitted,
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0014|
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0016|
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0017|
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0018| Thomas P. Foy, Chairman
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0020|
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0021| Adopted Not Adopted
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0022| (Chief Clerk) (Chief Clerk)
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0023|
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0024| Date
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0025|
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0001| The roll call vote was 9 For 0 Against
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0002| Yes: 9
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0003| Excused: Alwin, Luna, Rios, Sanchez
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0004| Absent: None
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0006|
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0007| G:\BILLTEXT\BILLW_97\S0369
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